Home ROBERT COLLINGS, CAROLINE COLLINGS and LINDA S. CORNELL v. LEONARD H. GOLDER, KATHLEEN WILLIS and ERNEST E. DODD, as they are members of The Planning Board of the Town of Stow

MISC 348645

July 10, 2009


Piper, J.


Related Cases:

This case is before the court (Piper, J.) on a motion by the plaintiffs for summary judgment. In this action, brought pursuant to G. L. c. 41, § 81BB, plaintiffs seek judicial review of a decision of the Planning Board ("Board") of the Town of Stow, whose members are defendants. The decision at issue in this case ("Decision") is the Certificate of Action, filed by the Board with the Town Clerk on May 23, 2007. The Board approved the definitive subdivision put before it by the plaintiff landowners, but imposed a variety of conditions which plaintiffs challenge in this litigation.

In Count 1 of the complaint, the plaintiffs ask the court to issue a judgment that various of the conditions and plan modifications imposed as part of the Decision are void as overreaching, arbitrary and capricious, and as constituting a substantial error of law that materially and adversely impairs the rights of the plaintiffs. Count 2 of the complaint asks the court to adjudicate that the zoning boundary of the Flood Plain/Wetlands District in the Town of Stow is as set forth (all as discussed below) not on the "SFHA/Standard Flood Modified" areas shown on a 1966 Corps of Engineer plan, but also as referenced in a FEMA letter of October 2, 2006 and as determined by a letter of map amendment issued by FEMA, and as shown on engineering data and FIRM maps submitted by plaintiffs. Count 2 also asked the court to order the Town of Stow to delineate anew the Recreation-Conservation District and Flood Plain/Wetlands District, and base the re-delineation on accurate topographic and mapping techniques. Count 3 of the complaint asks the court to decide that a portion of lot 5 on the plan is outside the bounds of the Recreation-Conservation and Flood Plain/Wetlands District.

After briefing and argument on the motion for summary judgment, the court took the motion under advisement, and now decides it.

The following facts are properly before the court for its consideration based on materials submitted conformably with Mass. R. Civ. P. 56(c) and are undisputed:

1. The plaintiffs, Robert Collings, Caroline Collings and Linda S. Cornell, are owners of certain parcels of real property in the Town of Stow, County of Middlesex, Commonwealth of Massachusetts. The subject property is known as Riverhill Estates.

2. The defendants, Leonard H. Golder, Kathleen Willis and Ernest Dodd are members of the Planning Board of the Town of Stow.

3. The plaintiffs applied to the Board for approval of a definitive subdivision plan of land pursuant to the subdivision control law, G. L. c. 41, § 81K et seq. The land, made up of different parcels all owned by the plaintiffs, is situated off of Barton Road in the Town of Stow. The plan was titled "Riverhill Estates" and was drawn by Thomas Land Surveyors & Engineering Consultants, Inc., dated April 14, 2006 and revised through March 28, 2007.

4. Riverhill Estates is a subdivision comprised of fifty-five acres of land. The plan for which plaintiffs seek an approval would create only five lots on this land.

5. The Board filed with the municipal clerk its Certificate of Action on May 23, 2007.

6. The Board approved the plan with certain conditions.

7. The Decision of the Board requires a plan modification, to show at least ten percent (5.5 acres) of the land being subdivided to be designated as open space. According to a condition included in the Decision the designated open space must have public access acceptable to the Board, and must be "offered," in the first instance, to the Town, acting through its Conservation Commission. This land is to be designated as open space in exchange for the waiver of the otherwise applicable five hundred foot maximum length which the subdivision rules impose on a street ending in a cul-de-sac.

8. The Decision imposes the condition that if the plaintiffs choose to construct a cul-de-sac street exceeding 500 feet in length, the plaintiffs will "offer" the open space parcels to the Town of Stow under the care and custody of the Conservation Commission, and otherwise to a land trust, or a homeowners association.

9. The Board required the plaintiffs to submit a draft deed and conservation restriction for the open space areas prior to the commencement of any construction.

10. The Decision of the Board requires a plan modification "to show the flood plain outlining the flood plain of the Assabet River as defined by the By law."

11. A portion of lot 5 of the Riverhill Estates subdivision abuts or is adjacent to the Assabet River.

12. The Decision of the Board states that "no building for residential use shall be approved or placed on any portion of the subdivision located within the Flood Plain/Wetlands Overlay District."

13. Plaintiffs applied for and obtained a Letter of Map Amendment ("LOMA") from the Federal Emergency Management Agency ("FEMA"). The LOMA is dated May 3, 2007; it purports to remove a portion of the plaintiffs' property from the special flood hazard area as determined by FEMA.

14. Thomas DiPersio, a professional land surveyor, reviewed the relevant portions of a 1966 Army Corps of Engineers plan (known as the Assabet River Technical Report and referred to in the zoning bylaws) and certain flood insurance rate maps, and took on-site elevation measurements in an effort to determine the district boundary for the Flood Plains/Wetlands Overlay District, striving to locate the land at an elevation of 182 feet, in keeping with the plaintiffs' reading of the bylaws.

15. The Board considered only the Assabet River Technical Report as the proper basis to fix the boundary of the Flood Plain/Wetlands District.

16. The Board, in interpreting the zoning bylaws, found that the Recreation Conservation District boundary line and the Flood Plain/Wetlands District line are to be ascertained separately.

17. The Board, in interpreting the zoning bylaws, made determinations about the inclusion of lands within the subdivision along the Assabet River as part of the Recreation Conservation District.

18. The Decision of the Board imposed a Condition and Plan Modification requiring homes and accessory buildings or structures to be limited to specific areas shown within the individual lots of the Plan.

19. The Decision of the Board requires any changes in topography, soil or vegetation beyond that shown on the plan to be subject to further review of the Planning Board.

20. The Decision of the Board grants a waiver requiring an open space buffer of 300 feet along the frontage of Barton Road contingent upon the plaintiffs submitting additional open space acceptable to the Board.

21. The Decision of the Board requires the recording of a covenant on lots with frontage on the cul-de-sac, providing that any units constructed on those lots be equipped with residential sprinklers.

The foregoing facts appear without substantial controversy, and are deemed established by the court for the purpose of any further proceedings which may be indicated in this matter. Mass. R. Civ. P. 56(d).


"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng. Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982).

The plaintiffs are the parties seeking summary judgment. They challenge some nine conditions in the Board's Decision, as set out in the filed Certificate of Action. Summary judgment may be granted to plaintiffs as to a challenged condition only if, as to that condition, there is no genuine issue of material fact, and as a matter of law plaintiffs show they are entitled to judgment in their favor. All inferences from the underlying facts will be drawn in the light most favorable to the Board members, as the parties opposing summary judgment. This court evaluates the summary judgment record to determine whether any genuine issues of material fact exist, and whether the moving party is entitled to judgment as a matter of law. See Ng. Bros., 436 Mass. 638 , 643-644 (2002).

On appeal from a decision of the Planning Board under G. L. c. 41, § 81BB, the court hears the evidence de novo and, on the facts found, determines the validity of the Board's action on the basis of the reasons stated by the Board. Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977); Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478-479 (1955). The burden of proof is on the party challenging the planning board's action to establish that the board exceeded its authority and acted improperly. Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975). While a trial judge may not substitute his or her own judgment for that of the planning board, the board's decision will not be sustained where it has exceeded its authority under the subdivision control law. See Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977). "[T]he role of the court is merely to ascertain whether the board exceeded its authority." Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981).

Plaintiffs put forward several arguments in an attempt to substantiate their claim that the Board's approval must be annulled, or that the matter at least must be remanded for further consideration. They contend that the Board violated its own rules and regulations and exceeded its authority by miscalculating the amount of open space; requiring, in effect, outright conveyance of open space to the Town with public access in perpetuity; treating the Recreation Conservation District Boundary Line separately from the Flood Plain/Wetlands District Boundary Line; refusing to locate correctly the boundary line for the Flood Plain/Wetland District; precluding construction on the hill on lot 5; refusing to consider the flood zones set out by the standard issued Flood Insurance Rate Map; imposing conditions requiring sprinklers; conditioning the waiver of the three hundred foot buffer requirement on a reservation of additional open space; requiring the fixed location of building sites within the individual subdivision lots; and reserving matters of substance for future determination. The court considers in turn each of the principal issues raised by plaintiffs.

Whether The Planning Board Miscalculated the Amount of Open Space Required in Exchange for a Waiver of the Five Hundred Foot Maximum Cul-de-Sac Street Length.

The plaintiffs argue that the condition of approval requiring the conveyance of 5.5 acres to the Stow Conservation Commission, a land trust, or a homeowners association exceeds the authority of the Board. This argument rests on the contention that, because the Subdivision Rules and Regulations in section 7.8.2 state that only land suitable for development can be used in calculating open space, and only 38.91 acres of all the land on the subdivision plan is suitable for development, the Board has grasped too much land to be dedicated for open space use. The Certificate of Action states that the Planning Board is authorized to require a minimum of ten percent of the land as open space. Ten percent of the developable area would result in an open space requirement of 3.9 acres. The plaintiffs argue that by requiring 5.5 acres of open space, instead of 3.9 acres, the Planning Board has exceeded its authority.

Section of the Subdivision Rules limits cul-de-sac streets to 500 feet in length, except that the Board may allow a cul-de-sac street to be extended to a maximum of 1,500 feet where certain conditions are met. One such provision is found in Rule subsection, which is one of many conditions required to be met before the Board may extend the length of a dead-end street from 500 to up to 1,500 feet. That subsection imposes the condition that "[t]he subdivider provides a minimum of ten percent of the land suitable for development (excluding wetlands) contained within the Subdivision to be dedicated for open space, parks or future public facilities and infrastructure. A covenant limiting the land must in such cases be provided in a form suitable for recording. ..." (emphasis added). Subdivision Rule (d).

Plaintiffs' argument studiously ignores, or seeks to have the court read away, the word of this section of the rule which is dispositive on this point: "minimum." The Board could not have had the subdivider provide less than ten percent, because the rule requires that percentage as a minimum. The Board was within its authority to require, as part of a decision to waive the 500-foot road length limit, land beyond a minimum of ten percent of the land suitable for development to be dedicated as open space. That is the only fair reading of the use of the term minimum in the relevant provision of the Rules. There must be an opportunity for the Board to insist upon more than ten percent, if ten percent is to be the minimum. Nothing in the Subdivision Rules limits the Board to a maximum of ten percent of the land suitable for development. The clear meaning of the Rules is just the opposite.

In this case, the Board's requirement of 5.68 acres, though greater than ten percent of the land suitable for development, is entirely reasonable. The 5.68 acres represents less than fifteen percent of the land suitable for development. There is nothing in this record showing that, as a matter of law, the Board's Rule on this point is not fair, valid, and properly promulgated, or that it was in any manner unreasonable for it to be applied in the way the Board applied the Rule here. The Board did not "miscalculate" the amount of open space required in exchange for the waiver of the 500 foot cul-de-sac length. What the Board did was take the amount of land already shown on the Plan submitted to it as devoted to open space in easement areas, including wetlands, and require that those acres be dedicated. It is difficult to see how the applicants can, under any fair view of the record, say that this action by the Board rose to the level of actionable unreasonableness or arbitrary and capricious decision-making.

Whether The Planning Board Improperly Required the Conveyance of Open Space or Public Access to Open Space.

The plaintiffs complain that the requirements of the Decision with respect to open space violate G. L. c. 41 § 81Q, which states in part:

"No rule or regulation shall require, and no planning board shall impose, as a condition for the approval of a plan of a subdivision, that any of the land within said subdivision be dedicated to the public use, or conveyed or released to the commonwealth or to the county, city or town in which the subdivision is located, for use as a public way, public park or playground, or for any other public purpose, without just compensation to the owner thereof."

Plaintiffs argue that the Board required outright conveyance of the open space, and the grant of public access, which is improper unless there is adequate compensation. According to the terms of Condition 8.7.8, "The Open Space Parcels shall be offered to the Town of Stow under the care and custody of the Conservation Commission for Open Space and for passive recreation with public access in perpetuity. Alternatively, if the Conservation Commission declines the Open Space, it shall be offered to a land trust or similar non profit organization subject to a Conservation Restriction with the Town named as a benefited party. In the event that the Conservation Commission and the land trust decline the offer, the Open Space shall be owned by a Homeowners Association, subject to a conservation restriction, with the Town named as a benefited party. In any such case, there shall be public access with appropriate restrictions."

But for one important point, plaintiffs may be correct that Condition 8.7.8 would violate G. L. c. 41 § 81Q. The challenged condition does require that the land which is to remain open space be "offered" in the first instance to the Town, in the care of its Conservation Commission. This mandated transfer to the Town is the kind of exaction which the statute forbids. The defendants say that the condition is not without wiggle room; the Conservation Commission might decline the "offer" the applicants are required to make, and then the beneficiaries of the offer become a land trust or some sort of homeowners association. These alternative recipients of the benefit of this open space land are not within the sweep of the §81Q prohibition, says the Board. That argument, while perhaps technically accurate, appears to miss the obvious point of the statute. The decision to accept or not the mandatory "offer" rests with the Town and its Conservation Commission in the first instance. This choice is not, as the Decision is written, something over which the applicants have any control. It does not seem to answer the statutory limitation that the first alternative set up under the Board's condition -- a required offer of the land to the Town-- might not come to pass. In addition, it is not clear that the second and third alternatives -- mandatory transfer to a land trust or association--pass muster under §81Q, particularly where the emphasis of the entire condition is centered on forced provision of rights, including rights of access, to the public.

There is a more fundamental reason, however, why the challenged "offer" condition does not run afoul of the statute. This is because, under the uncontested facts shown by the record, the requirement to offer the land to the Town is not imposed as a raw condition of subdivision approval. The requirement is not made as to a plan which complies with all the Board's Rules. The requirement is in exchange for the Board's grace in determining that the Board should waive, in a material way, a crucial subdivision rule applicable to this project. Here, under a construct explicitly established by the Board's Rules, the Board has asked for dedication of land to open space in exchange for allowing a much longer dead-end street than otherwise allowed of right. The "offer" to convey is in exchange for the waiver of the 500-foot length limit on cul-de-sac streets as provided for in Rule 7.8.2 of the Subdivision Rules.

The Board is under no obligation to waive the 500-foot limit, especially where the overage is significant. See Miles v. Planning Bd. of Millbury, 404 Mass. 489 , 490 (1989) ("A board may waive strict compliance with its rules and regulations, although it is not required to do so."). On the other hand, "[a] planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations . . . ." G. L. c. 41 § 81R. The prohibition of G. L. c. 41 § 81Q would apply where a planning board requires a subdivision applicant to grant land as a condition for an approval to which the applicant is, under the rules, entitled as a matter of right. The prohibition might even be said to apply where the Board extracts the land to accomplish a public purpose or benefit which is unrelated to the purpose of the rule being waived. See Sullivan v. Planning Bd. of Acton, 38 Mass. App. Ct. 918 , 921 (1995); Woodland Inv. Corp. v. Town of Sherborn Planning Bd., 1989 WL 1182769 (Mass. Land. Ct. 1989).

In Woodland, the court held that a condition placed on the approval of a subdivision is not a quid pro quo which is obtained from a developer in return for a lifting of some objectionable rule. 1989 WL 1182769 at *7. Instead, the condition "refers to some particular aspect of the property or of the nature of the development which supports a waiver in a particular case without derogating from the reason for the application of the rule." Id. The plaintiffs in this action were required to grant open space as a condition of receiving a waiver for section 7.8.2 of the Town of Stow Subdivision Rules and Regulations. That section requires that a culdesac street be no longer than 500 feet in length. If the Board can show that the condition placed on the waiver of that rule is related to the reason underlying that rule, then the Board acted within its authority in requiring the condition. There are certainly plausible arguments that, by requiring the dedication of this land to open space use, the Board has helped mitigate the risk and harm which follows from allowing the length of the dead end street to be significantly increased. By making more of the land unable to be developed by placing it into open space status, the Board can be said to have reduced the number of homes which will be constructed along the elongated roadway. In fact, the open space requirement appears, on this record, to have driven down the number of house lots that the applicants will develop. By reducing the intensity of development, and bringing about a reduced density, the Board may well have addressed, to some degree at least, public safety concerns that underlie the maximum street length rule. With a small number of homes along the lengthened street, some of the access and emergency vehicle risks which the rule may have in part been adopted to address may be lowered. Because the court must grant all reasonable inferences in the Board's favor, the court cannot allow the plaintiff summary judgment on this point. The inference the court must adopt, given the summary judgment standard, is that the exaction of open space in the challenged condition was for a proper and rational consideration--the waiver of the street length rule--and that the open space requirement was a reasonable response to the concerns underlying the street length rule.

Whether The Planning Board Erred in the Way it Treated the Interrelation of the Recreation Conservation District Boundary Line and the Flood Plain/Wetlands District Boundary Line.

The plaintiffs complain that the Board addressed the zoning district boundary line for the Recreation Conservation District separately from the Flood Plains/Wetlands District boundary line, in a manner which violated the zoning bylaws. Plaintiffs argue that the two districts ought be addressed as if they are in the same location on the ground. Plaintiffs rely, in support of their argument on this point, on a portion of Section 5.1 of the zoning bylaws, which set forth the purpose of the Flood Plain/Wetlands District: "The provisions applicable to the Flood Plain/Wetlands District shall be considered as overlapping other zoning districts. In those cases where the Flood Plain/Wetlands District overlaps another zoning district, the provisions of the Flood Plain/Wetlands District shall be controlling." From this, plaintiffs derive the position that the two districts are, in effect, one. This is not the case.

A reading of the town bylaws does not indicate any intention by the Town to have the Recreation Conservation District lines coincide with the limits of the Flood Plain/Wetlands District. What the bylaws show is that, as often is the case in municipal zoning schemes, there is an underlying use district applicable to the land involved here, in this case the Recreation Conservation District, and that there is also, in addition, an overlay district, the Flood Plain/Wetlands District. The Town first is divided into use districts, including the Recreation Conservation District. Then, on top of that, the bylaws also provide for a second layer of regulation, in this case the Flood Plain/Wetlands District, whose purpose, according to Section 5.1, is "to protect the public health and safety, persons, and property against the hazards of flood water inundation; to preserve and maintain the GROUND WATER table; to protect the community from the costs which may be incurred when unsuitable development occurs in swamps, marshes, along water courses, or in areas subject to floods; and to conserve natural conditions, wildlife and OPEN SPACES for the education, recreation and general welfare of the public."

This common method of regulation, the use of the overlay district, requires a landowner to observe the use and dimensional regulations applicable in the underlying district and also those imposed by the overlay district rules. In many, if not most, instances, the regulations for the two districts complement each other. An overlay district of the sort involved here, focused as it is on protection of water and wetland resources, and on guarding against flooding, generally has more specific or intensive regulations, and these will prevail. To deal with the possibility that there might be some inconsistency between the regulations for the overlay district and the underlying one, the Town Meeting provided a tie breaker: where there is an "overlap," "the provisions of the [overlay] Flood Plain/Wetlands District shall be controlling." This "overlap" to which the bylaws refer is not an overlap physically existing "on the ground." The "overlap" referred to in the bylaws does not have to do, as plaintiffs contend, with the determination of the physical limits of the two districts. Rather, the overlap is addressed to the possibility that a parcel of land which is subject to two conflicting regulations might need legislative instruction on how to resolve the conflict. The bylaws deal with any such regulatory conflict by having the overlay district's provisions be controlling. The bylaws speak here of "provisions," a reference to the regulations imposed in each district, and not to the fact, unavoidable (and actually intended) where overlay districts are concerned, that land may well be located in two districts at once - one overlaying the other.

The letter submitted by the plaintiffs, a twenty two year old letter concerning a different parcel of land, even if it might be read very broadly to suggest otherwise, is of no assistance to plaintiffs; it is based on hearsay and later recollection, predates the current zoning map by ten years, and does not constitute any official or binding position.

The boundaries of the two districts, one an underlying district, and the other an overlay district, are defined in the town zoning bylaws. Section 2.2 of the zoning bylaws define the boundaries of the Recreation Conservation District as shown on a 1995 map entitled "Town of Stow Zoning District Map." A land owner is bound by this map unless, carrying the burden of proof, he can demonstrate that a different boundary was intended. Jenkins v.Pepperell, 18 Mass. App. Ct. 265 , 269 (1984). Plaintiffs offer insufficient evidence that a different boundary was intended. The Planning Board did not exceed its authority in treating the boundary lines of the Flood Plain/Wetlands District differently than the boundary lines of the Recreation Conservation District.

Whether The Planning Board Erred Regarding the Location of the Flood Plain/Wetlands District Boundary Line on the Definitive Subdivision Plan.

Plaintiffs challenge the Board(s conclusion that the land within plaintiffs' subdivision along the Assabet River lies within the overlay district, known as the Flood Plain/Wetlands District, discussed above. Both parties agree that the provision of the zoning bylaws which define the basis for delineating the Flood Plain/Wetlands zoning district is found in Section 2.3.8 of the zoning bylaws, which states,

"Boundary lines outlining the flood plain of the Assabet River shall be the limits of the Standard Project Flood Modified delineated on the plan entitled (Flood Plains & Profiles', sheets 2, 3 and 4 of the Assabet River Technical Report, Department of the Army, Corps of Engineers, dated June, 1966 and on file with the Town Clerk...."

Plaintiffs essentially are unhappy with this provision of the locally-enacted zoning law. They have attempted to introduce into the decisionmaking about whether or not their land lies within the overlay district, a large volume of engineering and survey information, the thrust of all of which is that the 1966 Corps of Engineers plan, and its delineated "Standard Project Flood Modified" areas, are outmoded or inaccurate. The additional engineering data plaintiffs would have the court rely upon is offered to show that the current elevations and physical characteristics of the subdivision land ought not place it, on an objective scientific basis, within areas requiring the protection afforded by the overlay district. Plaintiffs submitted as part of their subdivision plans locations of elevations (at 182.0 feet); these are in locations different from those indicated by the 1966 Corps of Engineers plans which are incorporated into the governing section of the zoning bylaw. Plaintiffs based their different elevations on, among other things, later maps and studies, including a 1979 flood insurance rate map (FIRM). If these later, different data are used to form the overlay district boundary line, plaintiffs will benefit from several additional acres of land that will become free of the overlay district's constraints.

In its Decision, the Board rebuffed these attempts by plaintiffs to bring in and benefit from later and more favorable flooding plans and studies. The Board was correct to do so. The simple reality is that the bylaw is the source which establishes and defines the location of the overlay district. The bylaw is local legislation enacted by Town Meeting. The legislation has a fixed method of identifying the limits of the overlay district. That method is to use the 1966 Corps of Engineers plans. The bylaw does not lend itself to multiple interpretations on this score. It may be that the bylaw's reliance on, and incorporation by reference of, the 1966 plans is outmoded and no longer provides the most current and accurate measure of the areas needing protection. But these are not arguments which the court can act upon, to judicially rewrite the zoning bylaws. These arguments must be addressed to the Town Meeting, which may, in its legislative discretion, decide that the provisions of the bylaws currently in force use dated data, and that the plans used to define the limits of the overlay district ought be changed by amendment of the bylaw provisions. The court cannot act to make this kind of change. Neither could the Planning Board, acting unilaterally, do so. The Board would have been acting contrary to the bylaw as in effect, were it to have permitted the plaintiffs to "update" the limits of the overlay district based on data not authorized in the bylaws.

For these reasons, the affidavits by licensed surveyor Thomas DiPersio, who prepared a topographical map of the property to determine the boundary line of the Flood Plain/Wetlands District, and to show that a 2.08 acre section within lot 5 on the subdivision plan was above the elevation of 182 feet, and therefore not within the Flood Plain/Wetlands overlay, is not something on which the Board could have relied. The arguments plaintiffs advance based on this line of evidence are not a proper grounds for awarding plaintiffs summary judgment on this issue. Also for these reasons, the effort by plaintiffs to identify a "hill" area of high elevation on Lot 5, and remove it from the overlay district based on that location's topography, does not accomplish plaintiffs' desired result.

The plaintiffs also argue that section 2.3.8 of the Bylaws amends the boundaries of the Flood Plain/Wetlands District by requiring resort to the Flood Insurance Rate Map (FIRM) of 1979, and that the 1966 Corps of Engineers plan must yield to the later FIRM where use of the FIRM would free some of plaintiffs' land from the additional regulation of the overlay district. That, however, is not what the language of section 2.3.8 says. It provides that "[t]he Flood Plain/Wetlands District shall also include all lands designated a Zone A, AO, or Zone A 1-30 and A99 on the [FIRM]..." (emphasis added). That language does not remove from the Flood Plain Wetlands District any area delineated by the 1966 Assabet River Technical Report." The language only adds to the land set out on the 1966 plan additional areas in the designated zones on the later FIRM. The bylaws cannot be read as deleting from the overlay district land which is delineated on the 1966 plan, simply because it is not included in the protected zones shown on the 1979 FIRM. This kind of change in the bases for overlay district definition requires an amendment of the local bylaws. Neither the Board nor the court can rewrite this section to achieve a result that may seem entirely sensible. The Board did not err in refusing to consider the FIRM as a way to take a portion of the subdivided land out of the Overlay District.

Whether The Board Erred in Requiring Sprinklers.

Plaintiffs argue that the Board abused its discretion or acted contrary to law by requiring the installation of sprinklers in residential structures to be constructed on the lots within the subdivision it approved. The Decision establishes that Board required sprinklers as a condition for waiving the 500 foot length limit for cul-de-sac streets, something the Board expressly was empowered to do under subsection of the Rules. That provision says that "No waiver [of the 500 foot maximum street length] will be granted unless the following conditions are met...: c) The subdivider provides the Board with a covenant running with the land ... that all dwelling units constructed on lots with frontage on the cul-de-sac shall be provided with a residential sprinkler system."

This Rule is valid facially. Here there is a rational and sufficiently related reason why the waiver of the 500-foot street length limit properly requires that sprinkler systems be installed within the homes on the longer street. By insisting on residential fire suppression sprinklers, the Board could certainly be acting to protect the safety of the occupants of the home, the neighborhood, and the fire fighters of the Town. Sprinklers are one way to address the longer time firefighters might have to respond to fires along the longer street. Firefighters might face longer response time due to the extra street length, and to the increased risk that a portion of the single entrance road might be blocked, so as to keep fire equipment from promptly reaching a home that is on fire. With sprinklers to back up the fire trucks, damage and injury may well be minimized. The sprinkler requirement set out in the Rule was within the Board's authority because it related to the safety, convenience, and welfare of the inhabitants of the Town of Stow. Under the Rules, the Board could not waive the street length limit without requiring the sprinklers, and the record does not support the plaintiffs' contention that the Board was under any legal obligation to waive the sprinkler requirement, too.

Whether The Planning Board Erred in Reserving Matters of Substance for Further Review.

Plaintiffs complain that the condition imposed by the Board reserving further review of any change in topography, soil, or vegetation beyond that shown on the approved submitted subdivision plan is arbitrary and capricious. The condition under challenge is found in section 8.3.1 of the Decision: "Any change in topography, soil or vegetation beyond that shown on the plan shall require further review by the Planning Board."

The plaintiffs cite Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 624 (1986) for the proposition that a permit granting authority may not delegate to another board, or reserve to itself for future decision, the determination of an issue of substance. That that is the law is clear, particularly when decisions of permit granting authorities have held back decision-making which is integral to an application for a special permit or variance. Here, however, the Board was dealing with a definitive subdivision plan application. G. L. c. 41, § 81W applies. It provides that where a definitive subdivision plan has been approved, changes to that plan can be made only by application to the Planning Board for a modification. The Board has statutory authority to review proposed changes to a subdivision plan, and, with this particular condition read through that prism, it is easy to see that the Board did not act in an arbitrary and capricious manner in requiring that certain changes be approved before being implemented unilaterally by the plaintiffs. This opportunity to pass on changes, as to the matters listed, would, to the extent they were material changes, have been available to the Board even if this particular condition had not been express in the Decision. And with a subdivision like the one before the Board, with numerous waivers and specific conditions imbedded in the Decision, it was a reasonable exercise of the Board's authority for it to insist that changes which might be material in any respect, or which might affect one or more of the waivers or conditions, be reviewed in advance by the Board. Understanding this challenged condition to relate to changes of a substantial or material nature, the condition is a proper one.

Whether The Planning Board Erred in Requiring Specific Site Locations for Proposed Buildings.

In Section 8.2.1 of the Decision the Board required that the final, so-called "Record Plan" be modified to "show the limit of construction on each lot in accordance with the requirements of the Bylaw and proposed uses. Any structures or buildings outside this area are not permitted."

Plaintiffs complain that in this aspect of the Decision the Board violated G.L. c. 41,§ 81Q. Among many other things, that statute, in dealing with what it is that subdivision rules and regulations may and may not control, provides: "[e]xcept in so far as it may require compliance with the requirements of existing zoning... by-laws, no rule or regulation shall relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings which may be constructed thereon...." Plaintiffs say that, by requiring specific site locations for proposed buildings, the Board may have run afoul of this statute.

This statute addresses the proper scope of subdivision rules and regulations which a board may adopt. The challenged condition and plan modification does not purport to derive from a specific Rule of the Board, and in response to the plaintiffs' summary judgment motion, the Board has not cited a particular Rule which imposes the requirement. In this respect, the Board's insistence on these conditions lacks the benefit of a promulgated rule.

The import of the challenged condition is only that the final version of the subdivision plan to be recorded show the limits for building imposed by applicable zoning law, and that buildings, when they eventually are built, stay within those limits. That the buildings to be erected on the subdivision parcels would need to be located in compliance with zoning should come as no surprise to plaintiffs. It may be that the additional requirement--that the plan which is to be endorsed and recorded be drawn with the limits of the permitted building areas shown--is one which ought to be included in the Rules to be binding. The harm to plaintiffs from allowing this requirement to stand without demonstrated support in the Rules is not great - it is simply the extra burden and cost of calculating and drawing the permissible building areas on each lot. This is not a great burden, but, unless the Board shows that that burden is one placed on subdivision applicants by the Rules -- something the Board has not done--the Board should not have imposed this requirement. This particular aspect of this challenged condition should not have been included in the Decision, and the plaintiffs are entitled to judgment in their favor on this narrow point.

The larger substantive point, of course, is that the Board was entirely within its authority in insisting that no building take place in areas where building is contrary to the zoning bylaws' provisions. This is a proper condition and will stand. The Certificate of Action allows the plaintiffs to build anywhere within the areas permitted under the zoning bylaws, but not otherwise, and in that respect the Decision is proper.

It is

ORDERED that the plaintiffs' motion for summary judgment and the relief sought in the conclusion to their memorandum, is DENIED, except that summary judgment is GRANTED only as to plaintiffs' contention that the Board exceeded its authority in imposing, in Section 8.2.1 of the Decision, the condition that the applicants "show [on the Record Plan] the limit of construction on each lot in accordance with the requirements of the [zoning] Bylaw and proposed uses ." It is further

ORDERED that the parties, by their counsel, are to confer promptly and to file, within thirty days of this Order, a joint written detailed report. In the report the parties are to provide the court with their collective or respective views regarding whether there remain, in light of the rulings made in this Order, any issues still requiring decision by the court, and, if so, in what manner the parties believe those issues ought to be considered for decision, and decided, by the court. If any party believes the case now is in a posture that will permit entry of final judgment, they are to suggest a form of judgment for the court to enter. If any party believes that the court, in light of its rulings in this Order, needs to enter any interim order prohibiting activities on the plaintiffs' land, they are to specifically identify in the report the orders they believe are necessary.

So Ordered.

By the Court. (Piper, J.)